United States District Court, S.D. New York
February 2, 2004.
IQBAL A. PASHA, Plaintiff, -against- WILLIAM M. MERCER CONSULTING, INC., Defendant
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2
Defendants William M. Mercer Investment Consulting, Inc and Mercer
Consulting Group, Inc. (collectively,"Mercer") have moved for summary
judgment, pursuant to Fed.R.Civ.P. 56, to dismiss the complaint of
plaintiff Iqbal A. Pasha's ("Pasha"). Additionally, Mercer has moved to
strike Pasha's sur-reply. For the reasons set forth below, Mercer's
motion to strike is denied, and its motion for summary judgment is
Pasha commenced this action against defendants on October 31, 2000,
alleging that defendants refused to hire him as an investment consultant
based on his national origin (Pakistani) and age (then fifty-four).
Discovery closed on May 27, 2003. The instant motion was marked fully
submitted on October 8, 2003. On October 16, 2003, Mercer moved to strike
The facts are set forth based upon the Local Rule 56.1 statements of
the parties and supporting declarations.
William M. Mercer Investment Consulting, Inc. is a large provider of
investment consulting services to the fiduciaries of
pension funds, foundations, endowments, and other institutional
funds. Mercer Consulting Group, Inc., now named Mercer, Inc., is the
ultimate parent company within the consulting group.
Pasha is a Fellow of the Institute of Actuaries in London, England and
a Chartered Financial Analyst from the Association for Investment
Management & Research in Virginia. Pasha has also served as a Vice
President of Banque Indosuez in Paris.
In or about December 1996, Pasha contacted his professional
acquaintance, Peter Coster ("Coster"), the President and CEO of Mercer
Consulting Group, Inc., seeking employment opportunities. Coster
recommended Pasha to Mercer three times. On the first two occasions, no
suitable jobs were available, but on the third occasion, Pasha was
interviewed for an investment consultant position and for a research
On or about December 17, 1999, Pasha met with Mary Sue Dickinson
("Dickinson"), the northeast regional leader of Mercer's investment
consulting practice, and with Ed Heilbron ("Heilbron") in Mercer's
Stamford office. On or about December 24, 1999, Pasha met with Ashgar
Alam ("Alam"), the national practice leader of Mercer's investment
consulting practice. Alam then suggested that Pasha interview with
members of Mercer's practice's research group in Chicago. On January 14,
2000, Pasha interviewed with four
principals in the firm's Chicago research group: Jim Hiner
("Hiner"), Brad Blalock ("Blalock"), Brian Collins ("Collins"), and Louis
Finney ("Finney"). Soon thereafter, Alam left Pasha a voice mail,
advising him that Mercer was unable to offer him a position with the
By letter dated January 24, 2000, Pasha attempted to appeal this
decision to Coster. Pasha claimed that his more extensive knowledge
threatened three of his interviewers in Chicago. Following a discussion
between Coster and Alam, Coster sent Pasha a letter on February 9, 2000
supporting Mercer management's decision and wishing him well in his
Pasha is of Pakistani national origin, and, at the time he interviewed
with defendants, he was 54 years of age. Alam is also of Pakistani
origin. Alam was born in Sargodha, Punjab in Pakistan, while Pahsa was
born in Hyderabad, India and grew up in Karachi, Sind in Pakistan.
Mercer hired 50 investment consultants during 1997 through 1999, six of
whom were over the age of 40, including one who was over the age of 50.
Mercer hired 16 investment consultants in the year 2000, three of whom
were at or above the age of 40 aged 41, 41, and 40.
According to Pasha, during the course of the interview, Alam "talked
about `recruiting young people' from the actuarial side of the company's
business to become Investment Consultants." (Compl. ¶ 8.) Pasha also
alleges that Alam made reference to his own age by talking about a mutual
acquaintance in Pakistan, a classmate of his who was 42-years old. At his
deposition, Pasha further testified that during his meeting with Hiner in
Chicago, "when we were walking out of the room, he said to me something,
something, I don't recall, we should be thinking of retiring at our age."
(Pasha's Dep. at 220.)
On or about August 4, 2000, Pasha filed a Charge of Discrimination with
the Equal Employment Opportunity Commission ("EEOC"). The following
month, the EEOC notified Pasha that it concluded its inquiry and that
"[t]he evidence . . . does not indicate that a violation has
occurred," and further that it does "not appear likely that additional
information [would] result in our finding a violation." A follow-up
letter, dated August 6, 2003, explained:
Although the file for the above-captioned charge
was lost during the destruction of EEOC's office
at 7 World Trade Center on September 11, 2001, the
September 8, 2000 letter indicates that our
determination was made solely upon an evaluation
of your charge. It does not reflect an assessment
of the facts or evidence from both sides.
The EEOC issued its Notice of Right to Sue on or about September
I. Pasha's Sur-Reply
Pasha's request to submit a sur-reply was received on October 6, 2003.
Pasha based his request on new evidence submitted by Mercer, not
previously disclosed in discovery. Pasha referred to affidavits submitted
by Dickinson and Allan Vernick, the Senior Human Resources Manager &
Principal, and to new statistical analysis. Pasha claims that the
Dickinson affidavit, in particular, should have been submitted during
discovery, or at the very least, during Mercer's opening motion for
summary judgment. Discovery ended on May 27, 2003, and this affidavit was
not submitted till August 19, 2003. In his sur-reply, Pasha argues that
Dickinson's testimony should, therefore, be disregarded.*fn1 Pasha
delivered his sur-reply before the summary judgment motion's return date
of October 8, 2003.
By letter dated October 16, 2003, Mercer moved to strike Pasha's
sur-reply on the ground that neither the Local Civil Rules for the
Southern District of New York, nor the stipulations and
orders set forth a briefing schedule that provide for sur-reply
Mercer's motion to strike is denied as Mercer submitted new information
in its reply brief; Pasha timely requested permission to submit a
sur-reply, notifying Mercer of his request; Pasha timely delivered his
sur-reply before the return date on the summary judgment motion; and the
Local Rules and stipulations do not prohibit the filing of a sur-reply.
Dickinson's affidavit will also be considered.
II. Applicable Standards
A. The Summary Judgment Standard
Summary judgment is granted only if there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(c); see generally 6 James Wm. Moore, et al.,
Moore's Federal Practice 1 56.15 (2d ed. 1983). The court will not try
issues of fact on a motion for summary judgment, but, rather, will
determine "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
The moving party has the burden of showing that there are no material
facts in dispute, and the court must resolve all ambiguities and draw all
reasonable inferences in favor of the party opposing the motion.
Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994)
(citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Thus,
"[s]ummary judgment may be granted if, upon reviewing the evidence in the
light most favorable to the non-movant, the court determines that there
is no genuine issue of material fact and the movant is entitled to
judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616,
621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under
the governing law," and a dispute about a genuine issue of material fact
occurs if the evidence is such that "a reasonable jury could return a
verdict for the nonmoving party." Anderson, 477 U.S. at 248;
R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
B. ADEA/Title VII Standard
For refusal to hire claims arising under either Title VII or the ADEA,
in order to establish a prima facie case of discrimination, a plaintiff
must show: (1) membership in a protected class; (2) qualification for the
position sought, (3) an adverse employment action, and (4) circumstances
giving rise to an inference of discrimination. Chudnovsky v.
Prudential Sec., Inc.,
No. 98 Civ. 7753, 2000 WL 1576876, at *7 (S.D.N.Y. Oct. 23, 2000)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Carlton v. Mystic Transp., 202 F.3d 129, 134 (2d Cir.
2000)). Where plaintiff makes out a prima facie case, the defendant may
rebut that showing by articulating a legitimate, non-discriminatory
reason for the employment action in question. Weistock v. Columbia
Univ., 224 F.3d 33, 42 (2d Cir. 2000). Upon defendant's articulation
of such a reason, the presumption of discrimination arising with the
establishment of the prima facie case "drops from the picture," and for
the case to continue, the plaintiff must present evidence that the
proffered reason is "a mere pretext for actual discrimination." Id.*fn2
Mercer does not dispute that Pasha is a member of a protected class;
that he applied for, but was not offered, a position within Mercer; or
(for purposes of this motion) that he was qualified for the position.
(Mercer's Mem. at 10.) Rather, Mercer claims that Pasha has failed to
point to any facts or circumstances that could reasonably give rise to an
inference of national origin or age discrimination in this case. Mercer
argues that even if Pasha could satisfy his initial burden of
establishing a prima facie case, he has not raised a triable issue of
pretext as to Mercer's legitimate, non-discriminatory reasons for the
decision not to hire Pasha.
A. Pasha Has Not Established a National Origin
Pasha claims that Mercer refused to hire him due to his Pakistani
national origin. In support of this claim, he points out that Alam, the
key decision-maker, is also of Pakistani origin. However, Alam was born
in Pakistan in Sargodha, while Pasha was born in India and grew up in
Karachi, Sind in Pakistan. According to Pasha, natives of Pakistan tend
to look down on those born in India, whom they regard as refugees, and
the people of Punjab tend to look down on the people of Sind. Pasha also
cites his personal experience that Pakistanis and Indians in the United
States tend to discriminate against their own kind.
Even if these biases are true, however, Pasha offers no support that
Alam shared them. He describes his interview with Alam as courteous and
favorable and even claims that Alam indicated he would become a principal
of the firm.*fn3 At his deposition, Pasha testified that nothing
occurred at his meeting with Alam to
heighten his concern about them both being Pakistani. (Pasha's Dep.
Pasha admitted at his deposition that nothing in his interactions with
Alam or with any of the individuals at Mercer caused him to believe that
national origin played a role in the decision not to hire him. Pakistan
only came up in Pasha's interview with Alam, and Pasha characterized it
as "perfectly natural in the circumstances" (Pasha's Dep. at 210.)
Statements and questions that "merely acknowledge" an individual's
national origin or background "do not support an inference of
discriminatory animus." Chudnovsky, 2000 WL 1576876, at *8;
accord Pasic v. Eztzi's Texas Holding Corp., No. 01 Civ. 1114,
2002 WL 31938854, at *3 (S.D.N.Y. Jan. 9, 2002) (granting summary
judgment for defendant employer on plaintiff's national origin claim).
Pasha next alleges that Mercer refused to provide employee national
origin statistics during discovery, and that it does not appear to employ
any investment consultants from Pakistan in their United States
However, Mercer could not provide information on their investment
consultants by national origin because it does not keep
track of this information. Applicable EEOC regulations require only
that Mercer maintain records as to gender, race, and ethnic group, not
national origin. 29 C.F.R. § 1607.4(B). Furthermore, even if these
statistics existed, it would be necessary to have a sense of the number
of candidates of Pakistani origin in the applicant pool in order to
Although Pasha concedes that Alam is of Pakistani origin, he explains
that Alam has never been employed by either of the two defendants in this
lawsuit and that his salary has always been paid by William M. Mercer,
Inc., later renamed Mercer Human Resource Consulting, Inc., a separate
legal entity and parent of one of the defendants.
In his affidavit, Alam testified that he was the U.S. national practice
leader for defendant William M. Mercer Investment Consulting, Inc. from
in or about April 1999 through in or about March 2001. He was employed by
the parent corporation, Mercer Human Resource Consulting, Inc., as the
leader of its New York office from in or about March 2001 through in or
about February 2003.
In any case, all parties agree that Alam held a position of power with
regards to the defendants. Pasha himself characterizes Alam as "the main
decision-maker" in this case. (Pasha's Opp. Mem. III.A at 3.) See
also (Pasha's Opp. Mem. IV at
7 ("The truth of the matter is that . . . only one person
actually decided that the plaintiff should not be hired and that was
Alam, the head of investment consulting at that time.").)
B. Pasha Has Not Established an Age Discrimination
1. Pasha Has Not Established a Prima Facie Case of
In support of his age discrimination claim, Pasha points to remarks
made by Alam and Hiner. According to Pasha, Alam talked about recruiting
young people from the actuarial side of the company's business to become
Investment Consultants. Alam also made reference to his own age by
talking about a mutual acquaintance in Pakistan, a classmate of his who
was 42-years old. At his deposition, Hiner also raised a statement made
by Hiner.*fn5 Pasha testified, Hiner said "to me something, something, I
don't recall, we should be thinking of retiring at our age." (Pasha's
Dep. at 220-21.)
These remarks are too "[i]solated and ambiguous" to support a finding
of age discrimination. Douglas v. Dist. Council 37 Municipal
Employees' Educ. Fund Trust, 207 F. Supp.2d 282, 291
(S.D.N.Y. 2002) (citing Ranieri v. Haighland Falls-Fort
Montgomery Sch. Dist., 198 F. Supp.2d 542, 545 (S.D.N.Y. (2002)).
Alam's comment concerning recruiting consultants from the actuarial side
of Mercer's business to become investment consultants is alleged by
Mercer to refer to a potential solution to the firm's concerns about
losing its experienced investment consultants to higher-paying
investment management firms. The fact that youth was mentioned, since, as
Pasha himself explains, such a transition would probably be most feasible
in the earlier stages of a career, does not indicate an age bias.
(Pasha's Opp. Mem. II.B at 1-2.)
Nor can Alam's casual mention of a mutual acquaintance in Pakistan
reasonably be said to give rise to an inference of age discrimination.
Upon learning that one of Pasha's prior employees was Eastern Federal
Union Insurance Company, Alam mentioned that a member of the family that
owned the firm was a former classmate of his. Pasha acknowledges that
reference to this classmate was "perfectly natural in the circumstances"
in the course of a "to-get-acquainted type of conversation."
(Pasha's Dep. at 211-12.) Pasha, nonetheless, argues that the specific
mention of age was unnatural. However, Alam's reference to the
classmate's age could serve merely to distinguish him from other family
Similarly, Hiner's remark that "we should be thinking of retiring at
our age" was "no more than a passing flippancy," and "too immaterial to
withstand a properly-supported motion for
summary judgment." Bern v. United Mercantile Agencies,
942 F. Supp. 217, 220 (S.D.N.Y. 1996). See also Hatter v.
Fulton, No. 92 Civ. 6065, 1997 WL 411623, at *5 (S.D.N.Y. Jul. 21,
1997) (granting summary judgment for employer, finding that supervisor's
comment that company "needs young people" was merely a "stray utterance
that is insufficient to give rise to an inference of discrimination");
Buompane v. Citibank, N.A., No. 00 Civ. 7998, 2002 WL 603036,
at *12-13 (S.D.N.Y. Apr. 18, 2002) (granting employer's motion for
summary judgment on age discrimination claim, despite decisionmaker's
comments that she wanted an "energetic young buck," and sought a "young,
energetic, fresh approach"). Moreover, it is undisputed that Hiner was
not the person ultimately responsible for deciding whether to hire Pasha.
Pasha also points to a note in Hiner's written evaluation in which he
expressed "concern about [Pasha] making a shift to a narrower focus
this late in his career." The Second Circuit has found that virtually
identical comments "do not reflect discriminatory animus, or show that
[plaintiff's] age was in fact a motivating or substantial factor in the
employment decision." Raskin v. Wyatt Co., 125 F.3d 55, 62-63
(2d Cir. 1997) (rejecting contention that defendant's president's comment
about plaintiff "chang[ing] paths at what he called a `late stage' of
[plaintiff's] career" created an inference of age discrimination, and
affirming summary judgment for defendant).
In contrast to the comments alleged by Pasha, the cases he cites
involved remarks that "directly manifest[ed] a discriminatory attitude,
of a sufficient quantum and gravity that would allow the factfinder to
conclude that attitude more likely than not was a motivating factor in
the employment decision." Erickson v. Farmland Indus., Inc.,
271 F.3d 718, 724 (8th Cir. 2001) (cited in Pasha's Opp. Mem. II.B at 7).
Pasha further presents statistical evidence in support of his age
discrimination claim. In the year 2000, when Pasha was rejected from
employment, Mercer hired 16 investment consultants. Pasha points out that
the oldest of the recruits was 41 and the youngest 23 and that candidates
chosen for the position were between 13 and 21 years younger than he was.
From 1997 through 1999, Mercer hired 50 investment consultants, 6 of whom
were over the age of 40, including one who was over the age of 50. Pasha
points out that during the four years nearly three-quarters of recruits
were under age 35, and 95% were below age 45.
However, this does not necessarily prove discrimination. As explained
in the Guider case,
Plaintiff's statistical evidence only accounts for
the ages of those individuals hired, while
ignoring the ages of those individuals who applied
for the position. For example, the ages of the
individual . . . applicants could be under
40. . . . Without accounting for these factors,
the statistics do no support an inference of age
Guider v. F.W. Woolworth Corp., No. 96 Civ. 3168, 1998 WL
702275, at *11 (S.D.N.Y. Oct. 7, 1998). See also Diamond v. T. Rowe
Price Assocs., Inc., 852 F. Supp. 372, 408 (D.Md. 1994) (rejecting
plaintiff's statistics where no attempt was made to determine what
percentage of qualified individuals actually pursued employment with
pertinent firms or with defendant); Hill v. United States Postal
Serv., 522 F. Supp. 1283, 1296-97, 1303 (S.D.N.Y. 1981) (analysis
that fails to take into account composition of relevant applicant pool is
insufficient to establish prima facie case of discrimination).
Pasha attempts to provide information regarding the applicant pool*fn6
by citing AIMR age statistics covering the universe of investment
consulting professionals in the United States as of January 2000.*fn7
Pasha then compares these statistics with the ages of the individuals
hired by Mercer from 1997 to 1999. However, these statistics do not even
purport to be representative of the subgroup of investment professionals
seeking employment. Mercer thus suggests it would be more appropriate to
compare these figures with all of Mercer's United States investment
consultants as of January 1, 2000. Such a comparison demonstrates that
34.7% of investment consultants employed by Mercer at that time were over
years of age a figure that closely matches AIMR statistics
that 37% of all investment consultants are in the protected class.
Furthermore, it is undisputed that members of the protected class were
hired. Three of the 16 candidates hired in 2000 were at or over the age
of 40, and 6 of the 50 candidates hired from 1997 through 1999 were over
age 40. One of the employees hired was 58 years-old, 4 years older than
Pasha when he applied for a job.*fn8 Thus, Mercer notes that in the
three years preceding the decision not to hire Pasha, 12% were in the
protected age group, and the following year, nearly 19% were in the
protected age group. As the Supreme Court recognized, in determining
whether discrimination was a motivating factor for an adverse employment
decision, evidence of an employer's non-discrimination should be
considered as well. St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 513-14 & n.5 (1993); see also Schachner v. Beth Israel Med.
Ctr., 14 F. Supp.2d 468, 471 (S.D.N.Y. 1998) (refusing to draw an
inference of discrimination where defendant offered a position to a
member of the same protected religious group as plaintiff).
2. Mercer Has Articulated Non-Discriminatory
Reasons for its Decision Not to Hire Pasha
In any case, even if Pasha could satisfy his initial burden of
establishing a prima facie case of age discrimination, Mercer has
articulated non-discriminatory reasons for its decision not to hire
Pasha, and Pasha has not raised a triable issue of pretext.
Mercer alleges that Pasha was interviewed by no fewer than seven
individuals who were all unanimous in concluding that Pasha's skill set,
experience, and personality would not make him a good fit within Mercer.
In an affidavit, Alam testified:
Although I found Pasha to be intelligent and
motivated, I concluded that he lacked relevant
experience for an investment consulting position
within Mercer. I also felt that Pasha's attitude
and personality were not well suited to a
client-facing position like investment consultant.
My impression was that Pasha believed himself to
be smarter and more talented than everyone else;
in conversation, he exhibited a condescending tone
that, candidly, I found to be a turn-off.
(Alam Aff. ¶ 5.) Alam further stated that Dickinson and
Heilborn reported to him that "in their view, Pasha, while technically
knowledgeable, did not have the necessary skills or personality to be a
field consultant, which, . . . required the ability to develop working
relationships with clients." (Alam Aff. ¶ 4.) In her affidavit,
Based on a luncheon interview with Mr. Pasha, I
concluded that he lacked the background and
skills, including the interpersonal skills,
necessary to succeed as an investment consultant.
Specifically, I felt that Mr.
Pasha's intellectual arrogance would hamper
his ability to sell Mercer's services and to work
effectively with others on a number of levels,
both within the Mercer organization and his
interaction with clients . . . Following my
interview with Mr. Pasha, I provided Mr. Alam with
my feedback, and with my recommendation that Mr.
Pasha not be offered employment as an investment
(Dickinson Aff. ¶¶ 2-3.)
The three Chicago interviewers submitted written evaluations to Alam.
These evaluations included the following comments:
"I don't think Al [Pasha] fits our
organization, especially in research
we are too narrowly focused for
him to be happy."
"[H] is lack of background in our
business would hurt him. . . ."
"Al didn't appear to be a real good fit
for Mercer. I think he lacks relevant
experience on the consulting side."
"He appears to be a relatively weak
marketer. All business he has done with
IPI [Investment Perspective International,
Inc.] appears to be from his former partner
in London. I think things have come to a
halt since the split."
"While technically competent, I don't
think he is an earth-shattering thinker."
"As for a research role, Al would be an
OK, but not [a] great fit."
"He is naturally curious and inquisitive
and quite up-to-date on current thinking,
but I don't sense that he's a tinkerer and
He "could have difficulty moving to [a]
Marketing "[d]oesn't appear to be [his]
"Think he would provide direction
don't know if he would take dir[ections]."
"Experience points to [him] not being [a]
Communication skills are "not stellar."
All of the written evaluations recommended against making Pasha an
offer. Alam summarized that "[t]he consensus was that Pasha's `mile wide,
inch deep' professional background was simply too broad-based, and did
not fit the `inch wide, mile deep' researcher profile." (Alam Aff. ¶
Courts should "be able to rely on evaluations of prospective employees
to determine whether the individual seeking employment meets the
prospective employer's legitimate expectations" and "must not
second-guess [the employer's] decision making process" since
"[e]mployers, not the courts, have the requisite experience in setting
employment qualifications." Jenkins v. Metropolitan Opera Ass'n,
Inc., No. 96 Civ. 6665, 1999 WL 147745, at *6 (S.D.N.Y. March. 18,
1999), aff'd, 213 F.3d 626 (2d Cir. 2000). Thus, it is not the
Court's role to police the employer's judgment and ensure that the best
qualified person is hired. Rather, the law only safeguards against
discriminatory purpose. Ranieri, 198 F. Supp.2d at 546 ("[O]ne
cannot draw from an unwise decision any inference that it was reached on
forbidden grounds. The law does not require an employer to hire the best
qualified person, and as long as the evidence does not tend to
support an inference of age discrimination, the [employer] does not
have to prove that it made the wisest or best choice.").
Where, as here, the employer articulates non-discriminatory reasons
for its employment decision, the burden shifts back to the plaintiff to
demonstrate "by a preponderance of the evidence, that the employer's
presumptively valid explanation was merely a pretext for discrimination."
Griffin v. Ambika Corp., 103 F. Supp.2d 297, 307 (S.D.N.Y.
3. Pasha Has Not Raised a Triable Issue of
To raise a triable issue of pretext, the "plaintiff must produce not
simply some evidence, but sufficient evidence to support a rational
finding that the legitimate, non-discriminatory reasons proffered by the
[employer] were false, and that more likely than not discrimination was
the real reason for the employment action." Weinstock v. Columbia
Univ., 224 F.3d 33, 42 (2d Cir. 2000) (internal quotations omitted).
Pasha concedes that the Chicago interviewers found that he would not be
a "good fit" for the job. At his deposition, Pasha acknowledged that
nothing in his interviews with Blalock, Collins, and Finney caused him
concern about potential age or national origin bias. (Pasha's Dep. at
237-40.) However, Pasha argues that their negative opinions applied only
to a research position. He
refers to Hiner's and Finney's evaluations that indicate he would
be more suitable for a consulting position. Blalock's evaluation,
however, specifically cites Pasha's weaknesses in an investment
consulting capacity with comments such as "He appears to be a relatively
weak marketer."; Marketing "[d]oesn't appear to be [his] strong point.";
and Communication skills are "not stellar." Additionally, Finney ranks
Pasha's marketing potential as unsatisfactory.
Pasha further questions the universality of negative opinions amongst
the interviewers. He notes that Coster did not consider him unfit and
that he recommended him for employment with Mercer three times. He
further recounts that Dickinson told him he had an "enviable resume" at
his interview and that he has not seen a single piece of paper from
Heilbron recommending not to hire him. These claims, however, stand in
direct contrast to Alam's and Dickinson's affidavits, which relate
Dickinson's and Heilbron's conclusion that Pasha lacked the skills and
personality necessary for an investment consultant at Mercer.
Finally, Pasha characterizes the reasons given for refusing to hire him
as "subjective and conclusory." (Pasha's Opp. Mem. at 2.) He points out
that subjective traits, like personality, are more likely to mask
However, Pasha has not established discriminatory intent here.*fn10
Alam did not just dismiss Pasha for not possessing the skills and
personality necessary for an investing consultant, but rather arranged
for him to interview for a position with the firm's Chicago research
group. If Pasha's age (and/or national origin) were sufficient to turn
Alam against him, he would not suggest that Pasha interview with Mercer
for another position. Pasha's contention that Alam "orchestrated" the
Chicago interviews against him "to back up his decision and . . . preempt
any subsequent litigation," and that the Chicago evaluation
reports are "a subterfuge for employment discrimination," is without any
factual support. (Pasha's Opp. Mem. IV at 7, 4.)*fn11 Rather, it makes
sense that Alam invited Pasha to interview in Chicago with the
research group "as an accommodation to Coster" and in order "to afford
him every opportunity for employment within Mercer." (Alam Aff. ¶ 8.)
Furthermore, both prior to and following its decision not to offer Pasha
employment, Mercer hired other members of the protected age group.
For the reasons set forth, Mercer's motion to strike is denied, and
summary judgment is granted in Mercer's favor.
Enter judgment on notice.
It is so ordered.